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Before the
Federal Communications Commission
Washington, D. C. 20554
)
)
Moffatt Properties Leasing LLC ) File Number EB-02-OR-129
Owner of Antenna Structure No. ) NAL/Acct.No. 200232620005
1212292 ) FRN 0006-2670-41
Tupelo, Mississippi )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 24, 2002
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Moffatt Properties Leasing LLC (``Moffatt''), owner of
antenna structure number 1212292, willfully violated Section
17.4(g) of the Commission's Rules (``Rules'')1 by failing to
display the Antenna Structure Registration (``ASR'') number on
its antenna structure near Tupelo, Mississippi. We conclude that
Moffatt is apparently liable for a forfeiture in the amount of
two thousand dollars ($2,000).
II. BACKGROUND
2. On May 15, 2002, an agent from the FCC Enforcement
Bureau's New Orleans Office inspected antenna structure number
1212292 and observed that the ASR number was not posted on or
near the tower or anywhere on the property. The agent
interviewed one of the owners of Moffatt, Mrs. Chuck Moffatt, who
admitted that they owned the tower and that they had failed to
post the tower's ASR number.
III. DISCUSSION
3. Section 17.4(g) of the Rules requires the ASR number to
be displayed in a conspicuous place so that it is readily visible
near the base of the antenna structure. The antenna structure
was observed on May 15, 2002, and no ASR number was posted.
4. Based on the evidence before us, we find that on May 15,
2002, Moffatt willfully2 violated Section 17.4(g) of the Rules by
failing to post the ASR number.
5. Section 1.80(b)(4) of the Rules3 does not establish a
base forfeiture amount for failure to post the ASR number.4 The
Commission has determined, however, that an appropriate base
forfeiture amount for failure to post the ASR number is $2,000
per violation.5 In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Communications Act of 1934, as
amended (``Act''), which include the nature, circumstances,
extent, and gravity of the violation, and with respect to the
violator, the degree of culpability, and any history of prior
offenses, ability to pay, and other such matters as justice may
require.6 Considering the entire record and applying the factors
listed above, this case warrants a $2,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,8 Moffatt Properties Leasing LLC is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of two thousand dollars ($2,000) for willful violation of Section
17.4(g) of the Rules.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,9 within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, Moffatt Properties Leasing
LLC, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
8. Payment of the forfeiture may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FRN and NAL/Acct. No. referenced in the letterhead above.
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
10. The Commission will not consider reducing or canceling a
forfeiture in response to a claim of inability to pay unless the
petitioner submits: (1) federal tax returns for the most recent
three-year period; (2) financial statements prepared according to
generally accepted accounting practices (``GAAP''); or (3) some
other reliable and objective documentation that accurately
reflects the petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.10
12. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by regular mail and Certified
Mail Return Receipt Requested to Moffatt Properties Leasing LLC
at 1960 McCullough Blvd., Tupelo, Mississippi 38801.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4(g).
22 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of this Act ....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 47 C.F.R. § 1.80(b)(4).
4 See The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement''), 12 FCC Rcd 17087
(1997), recon. denied 15 FCC Rcd 303 (1999). The Forfeiture
Policy Statement states that ``...any omission of a specific rule
violation from the ...[forfeiture guidelines]...should not signal
that the Commission considers any unlisted violation as
nonexistent or unimportant. Forfeiture Policy Statement, 12 FCC
Rcd at 17099. The Commission retains the discretion, moreover,
to depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general forfeiture
authority contained in Section 503 of the Act. Id.
5 American Tower Corporation, 16 FCC Rcd 1282 (2001).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 47 C.F.R. § 1.80.
10 See 47 C.F.R. § 1.1914.